Riggin v. Office of Senate Fair Employment Practices

• Decision Date: 31 July 1995
• Docket Number: No. 94-6004,94-6004
• Citation: 61 F.3d 1563
• Parties: 68 Fair Empl.Prac.Cas. (BNA) 679, 66 Empl. Prac. Dec. P 43,649 Kenneth D. RIGGIN, Charles Farmer, Nicholas Garito, Sr., Edmund Goddard, William Hummer, James Kennedy, Fredrick Schafer, James Snyder, Thomas Williams, and Robert F. Ansell, Petitioners, v. OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES, Respondent, and Office of the Senate Sergeant At Arms, Intervenor.
• Court: U.S. Court of Appeals — Federal Circuit

Page 1563

61 F.3d 1563

68 Fair Empl.Prac.Cas. (BNA) 679,

66 Empl. Prac. Dec. P 43,649

Kenneth D. RIGGIN, Charles Farmer, Nicholas Garito, Sr. Edmund Goddard, William Hummer, James Kennedy Fredrick Schafer, James Snyder, Thomas Williams, and Robert F Ansell, Petitioners, v. OFFICE OF SENATE FAIR EMPLOYMENT PRACTICES, Respondent and Office of the Senate Sergeant At Arms, Intervenor.

No. 94-6004.

United States Court of Appeals, Federal Circuit.

July 31, 1995.

Donald R. Dinan, O'Connor & Hannan, Washington, DC, argued for petitioners. With him on the brief was James Fairbairn.

Claire M. Sylvia, Asst. Senate Legal Counsel, Washington, DC, argued for respondent. With her on the brief were Michael Davidson, Senate Legal Counsel, Ken U. Benjamin Jr., Deputy Senate Legal Counsel and Morgan J. Frankel, Asst. Senate Legal Counsel.

Timothy W. Milett, Senate Asst. Counsel for Employment, Office of the Senate Sergeant At Arms, Washington, DC, argued for intervenor. With him on the brief were Jean M. Manning, Senate Chief Counsel for Employment and Roy A. Sheetz, Senate Asst. Counsel for Employment.

Before PLAGER, CLEVENGER, and BRYSON, Circuit Judges.

BRYSON, Circuit Judge.

Ten former members of the United States Capitol Police challenge the statutory provision requiring that Capitol Police officers retire upon reaching age 55. A hearing board of the Office of Senate Fair Employment Practices held that the statute in question was validly applied to the petitioners, and the Senate Select Committee on Ethics agreed. We affirm.

I

The Capitol Police Retirement Act (CPRA), as enacted in 1990, required members of the Capitol Police who were eligible for retirement to retire upon reaching age 55. The effective date of the Act was postponed for two years, so that in October 1992, any Capitol Police officer who was 55 or older and had 20 years of service was forced to retire unless the Capitol Police Board granted the officer a special exemption from automatic separation. 5 U.S.C. Secs. 8335(d), 8425(b) (1988 & Supp. II 1990). In 1994, the statute was amended to raise the mandatory retirement age to 57. 5 U.S.C. Secs. 8335(d), 8425(c) (1994).

Following the enactment of the CPRA, a group of Capitol Police officers who were on the Senate payroll and were faced with mandatory retirement filed complaints with the Office of Senate Fair Employment Practices protesting the application of the mandatory retirement provision to them. Their principal contention was that the prohibition against age discrimination in the Government Employee Rights Act of 1991 (GERA), 2 U.S.C. Sec. 1202(2), effectively repealed the mandatory retirement provision of the CPRA.

A designated hearing board of the Office of Senate Fair Employment Practices denied relief. In its opinion, the board explained that Section 302 of the GERA, 2 U.S.C. Sec. 1202, which gave the employees a statutory right to be free from age discrimination, did not override the mandatory retirement provisions of the CPRA. The board found no reason to suppose that Congress intended in 1991 to repeal by implication the mandatory retirement provisions of the CPRA, which were enacted only one year earlier.

The board noted that the complainants had also challenged the mandatory retirement provisions on due process grounds. The board concluded, however, that its jurisdiction was limited to determining whether an employee had suffered a violation within the meaning of Section 302 of the GERA, 2 U.S.C. Sec. 1202, and did not extend to constitutional challenges to particular employment actions.

The Senate Select Committee on Ethics agreed with the board that "the CPRA was not repealed by, and does not violate, the Government Employee Rights Act of 1991." The Committee therefore affirmed the order of the hearing board, and the petitioners sought review in this court. See 2 U.S.C. Sec. 1209(c).

II

The petitioners renew their claim that the mandatory retirement provisions of the CPRA were effectively repealed by the GERA, even though the latter statute is silent with respect to its effect on the former. We agree with the hearing board that the GERA did not repeal the mandatory retirement provisions of the CPRA, and that the mandatory retirement provisions of the CPRA were therefore properly applied to the petitioners.

It is a familiar canon of statutory construction that repeals by implication are disfavored. Traynor v. Turnage, 485 U.S. 535, 547, 108 S.Ct. 1372, 1381, 99 L.Ed.2d 618 (1988); Radzanower v. Touche Ross & Co., 426 U.S. 148, 154, 96 S.Ct. 1989, 1993, 48 L.Ed.2d 540 (1976); Morton v. Mancari, 417 U.S. 535, 549-50, 94 S.Ct. 2474, 2482, 41 L.Ed.2d 290 (1974). When statutes appear to conflict, courts will endeavor to read them consistently and will not find a narrow statute "submerged by a later enacted statute covering a more generalized spectrum" unless the later statute "expressly contradict[s] the original act" or unless such a construction "is absolutely necessary" in order for the later statute to have any meaning at all. Radzanower, 426 U.S. at 153, 96 S.Ct. at 1992-93; see United States v. Fausto, 484 U.S. 439, 453, 108 S.Ct. 668, 676-77, 98 L.Ed.2d 830 (1988) ("it can be strongly presumed that Congress will specifically address language on the statute books that it wishes to change").

The task of reconciling the two statutes at issue in this case is not a difficult one. Contrary to the petitioners' contention, the GERA is the more general statute and the CPRA is the more specific: the GERA extends employment discrimination statutes to Senate employees generally, while the mandatory retirement provisions of the CPRA speak to a specific employment issue as it affects a specific group of congressional employees. Thus, the mandatory retirement provisions of the CPRA simply establish a narrow exception to the general rule, set forth in the GERA, that Senate employees are protected against age discrimination in employment.

The Supreme Court's decision in Morton v. Mancari, supra, provides a close analogy. In that case, the Supreme Court held that specific legislation requiring that Indians be given preference for employment with the Bureau of Indian Affairs was not implicitly repealed by the Equal Employment Opportunity Act of 1972. The Court found that the two statutes could readily coexist, and that "[w]here there is no clear intention otherwise, a specific statute will not be controlled or nullified by a general one, regardless of priority of enactment." 417 U.S. at 550-51, 94 S.Ct. at 2483.

As in Morton, an examination of the legislative background shows that there is no reason to suppose that Congress intended the general statute--the age discrimination provision of the GERA--to repeal the earlier-enacted but more specific statute--the mandatory retirement provisions of the CPRA. Beginning in the 1940s, Congress adopted a series of measures providing early retirement rights to federal law enforcement officers and firefighters. See Act of July 11, 1947, ch. 219, 61 Stat. 307 (FBI agents with 20 years of service permitted to retire at 50); Act of July 2, 1948, ch. 807, 62 Stat. 1221, 1221-22 (similar treatment provided for other federal law enforcement officers); Pub.L. No. 84-854, Sec. 401, 70 Stat. 736, 749 (1956) (similar treatment for employees at federal correctional facilities); Pub.L. No. 92-382, 86 Stat. 539 (1972) (similar treatment for federal firefighters). In 1974, Congress chose to balance the early retirement options for executive branch law enforcement officers with a mandatory retirement provision requiring that such officers retire at age 55 if they have 20 years of service at that time. See Pub.L. No. 93-350, Sec. 4, 88 Stat. 355, 356 (1974). The purpose underlying the mandatory retirement provisions was to ensure "the maintenance of relatively young, vigorous, and effective law enforcement and firefighting workforces," a goal that the early retirement option by itself had not achieved. See H.R.Rep. No. 463, 93d Cong., 1st Sess. 2 (1973).

During the same year that it enacted the mandatory retirement provisions for law enforcement officers, Congress extended the Age Discrimination in Employment Act (ADEA), 29 U.S.C. Secs. 621-34, to federal executive branch employees. Pub.L. No. 93-259, 88 Stat. 55, 74-75 (1974). Four years later, Congress amended the ADEA to make mandatory retirement unlawful for most federal employees, while leaving the mandatory retirement statutes for federal law enforcement officers in effect. Pub.L. No. 95-256, Sec. 5(c), 92 Stat. 189, 191 (1978). See generally Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 363-70, 105 S.Ct. 2717, 2722-26, 86 L.Ed.2d 286 (1985) (ADEA co-exists with federal mandatory retirement provisions for law enforcement officers); Palmer v. Ticcione, 576 F.2d 459, 465 n. 7 (2d Cir.1978) (same), cert. denied, 440 U.S. 945, 99 S.Ct. 1421, 59 L.Ed.2d 633 (1979); Bowman v. Department of Justice, 510 F.Supp. 1183, 1186 (E.D.Va.1981) (same), aff'd, 679 F.2d 876 (4th Cir.), cert. denied, 459 U.S. 1072, 103 S.Ct. 494, 74 L.Ed.2d 635 (1982); H.R.Rep. No. 756, 99th Cong., 2d Sess. 6 (1986), U.S.Code Cong. & Admin.News 1986, pp 5628, 5632 (even after 1978 amendment to ADEA, separate mandatory retirement laws for federal law enforcement officers and firefighters remained in effect).

In 1990, Congress enacted the CPRA, which brought the retirement system for the Capitol Police into line with the retirement systems for other federal law enforcement agencies. The CPRA authorized members of the Capitol Police with 20 years of experience to retire at age 50; it increased the annuities payable to Capitol Police retirees; and it required members of the Capitol Police who were eligible for retirement to retire at age 55, absent special circumstances. Pub.L. No. 101-428, 104 Stat. 928 (1990). Later that year, Congress raised the mandatory retirement age to 57 for other executive branch law enforcement...